The "finger" test found to violate rights
After a man she was in a relationship with raped her, Sandhya went to a hospital for an examination and treatment. "The clerk told me a male doctor will conduct the test [forensic examination] and asked me whether that was ok," Sandhya, who is in her 20s, told a Human Rights Watch researcher, Aruna Kashyap. "I said 'yes.' But other than that, I did not know what they were going to do."
No one told her that the doctor would perform the “finger” test on her. Similar to "virginity" tests, this degrading "test" is meant to show whether a rape survivor is "habituated to sexual intercourse." Although the tests are a scientific farce, defense attorneys often use the findings to challenge rape survivors' credibility and character, and their lack of consent.
This could soon begin changing. In May,India’s Supreme Court issued a binding ruling that "finger tests" inherently violate the rights of rape survivors. The public attention that Indian women's organizations along with Human Rights Watch brought to the issue played a key role in this development, and the judgment addressed concerns we raised in our 2010 report on the issue, Dignity on Trial.
The finger test is used throughout much of India, and Indian women's rights groups have condemned it for years. Human Rights Watch found numerous references to these tests when it analyzed 153 High Court judgments on rape from across India. The archaic practice is even described in outdated medical jurisprudence textbooks used by many doctors, lawyers, and judges.
In 2003, India amended its evidence law to prohibit cross-examination of survivors based on their "general immoral character." In fact, the Indian Supreme Court has ruled that results of the finger test cannot be used against a rape survivor. Although this ruling curtailed the practice, India's government has yet to take steps necessary to ensure that all states stop using it.
Our report documented the unscientific nature of the test, as well as how degrading and humiliating it is, especially for women who have just been raped. The report said the test, if carried out without informed consent, can constitute a sexual assault.
The test involves a doctor inserting fingers in a rape victim's vagina to determine the presence or absence of the hymen and the so-called "laxity" of the vagina. Yet hymens tear with many types of activities, and variations in the "size" of the hymenal orifice can be unrelated to sexual activity. Our work showed that findings from the finger test only perpetuate false and damaging stereotypes of rape survivors as "loose" women.
After releasing the report, Human Rights Watch, worked with leading Indian human rights organizations and activists, including the Centre for Enquiry on Health and Allied Themes, to increase awareness about India's need for new guidelines for treating and examining rape survivors. We wrote a joint letter to India's prime minister and the Planning Commission of India, which led to a meeting with the Planning Commission to discuss those topics.
The atmosphere in India surrounding sexual violence changed dramatically last December, when the death of a woman who was gang raped in New Delhi ignited national outrage. After the gang rape, we pushed even harder for changes to protect rape victims. We submitted statements to committees working on law and policy reform, and together with local groups, pressed for better medical treatment for rape survivors.
We provided input for an online campaign to end the finger test, designed by leading women's rights groups in India. Together with other civil society experts, we are participating in a process to provide input for new guidelines for the treatment of rape victims that a government Health Ministry committee is developing.
Along with the Supreme Court decision on the finger test, there has been other recent good news concerning women's rights in India. Reforms that went into effect in March, forbid using evidence about a woman's past sexual experience during rape trials.
Human Rights Watch will build on the momentum surrounding the finger test issue to work with Indian groups toward ending the inhumane, degrading practice. We ultimately want to see the government issue nationwide guidelines, standardize treatment and forensic examinations, change the medical curriculum, and to provide training so that doctors, police, prosecutors, and judges will be sensitive to rape survivors' needs and rights.